Punishing the Dead

Timothy Robicheaux and Brian Bornstein have an intriguing review of appellate cases in the current issue of Psychology, Public Policy and Law (abstract free, full article behind pay wall). About three fourths of the time, appellate courts have followed the principal of criminal law when dealing with punitive damages, i.e., there is no point in punishing the dead.

However, in a minority of cases juries have decided and appellate judges have concurred that such awards are appropriate. The rationale is that even though retribution is impossible, punitive damages against a deceased defendant’s estate deters other potential offenders. The type of case most likely to result in upheld punitive judgments against the dead are those involving auto accidents (e.g. cases in which an intoxicated driver died while injuring or killing others).

I'm with Anderson (well, his first line, I can't speak to the second), and especially with Paul – Ken Lay and various Madoff affiliates (Picower, and this week Madoff's son) died still holding onto fortunes they'd swindled away from others. Just because they timed their deaths well (in some cases by suicide), should they get to decide what happens to the money? I don't think they would get to give their ill-gotten gains to their favorite charity (let alone their family) if they were still alive, no matter how deserving the recipient. Indeed, in the case of the Madoff pyramid scheme there are efforts underway to claw back the gains realized (and withdrawn) by early investors some of whom were wholly unaware of wrongdoing, simply because those gains were actually the money fraudulently stolen by Madoff from the later investors.

Now, I understand that it's harder for the heirs of a dead crook to defend a civil action than for the crook themselves; they're not likely to be in full possession of the facts. Even if the legal costs are born by the estate's assets, the heirs are likely to spend valuable time involved in the dispute, in which they may be blameless. Potentially this burden upon their time and energy might punish them for another's deeds, which I would separate from the "punishment" of not inheriting wealth that wasn't the deceased's to pass on. And there is the potential for abuse there – what's to stop people with weak claims from pressing forward against an estate when they wouldn't attempt the same while the defendant lived? But the risk in giving would-be crooks the idea that they can control their purloined wealth for all eternity so long as they die when needed seems to me to be the greater.

"Anderson, some states do not allow the sale of insurance for punitive damages."

Right. I actually helped with an amicus brief on the subject. But some do.

The argument, for those here who aren't lawyers, is that punitives are generally available only for intentional or wanton misconduct, which the insured can choose not to commit, so the insurer shouldn't be on the hook; and, that knowing one's insured vs. punitives, one is no longer quite so deterred as otherwise.

IMHO, there is enough randomness built into the judicial system (e.g., juries) that being assessed for punitives is not so avoidable as is sometimes made out, and they should indeed be insurable, w/ suitable underwriting of course.

Ironically, "tort reform" has capped punitives in many states, so that maximum exposure is more predictable and thus insurable (where allowed by law), thus potentially encouraging intentional/wanton misconduct because, hey, we're insured. Or so one could argue. The caps are only per lawsuit though, so doing something really bad that could harm mulitiple people is still a bad idea.

–See? Drink a beer while you read all that, and it's like being trapped at a bar with a lawyer talking shop.

A variation on this theme: if through malpractice a lawyer fails to obtain punitive damages for the client, is the lawyer liable to the client for those lost punitive damages? Depends on where you live which state's law applies.